The BIA Addresses the Citizenship of Children Born out of Wedlock

Last week, the Board of Immigration Appeals (BIA) attempted to reconcile its inconsistent treatment of children born out of wedlock. The BIA determined that a person born out of wedlock may qualify as a legitimated “child” of his or her biological parents for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible.

On July 3, 1988, Mr. Cross was born out of wedlock in Jamaica to parents who were not then citizens or nationals of the United States. At the time of his birth, the Jamaican Status of Children Act (“JSCA”) of 1976 had eliminated the legal distinctions between legitimate and illegitimate children in that country. In 1995, Mr. Cross’ father placed his name on this birth certificate, thereby qualifying Mr. Cross as a legitimated child for purposes of visa preference classification under American immigration law. Mr. Cross' father eventually immigrated to the United States and subsequently accorded him a visa preference classification as his “child.” On September 2, 2000, at the age of 12, Mr. Cross was admitted to the United States as an immigrant and thereafter resided in this country as a lawful permanent resident. On August 3, 2001, his father became a United States citizen by naturalization while Mr. Cross was in his father’s legal custody.

At that time, the law provided that a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

The Immigration Judge found that Mr. Cross did not qualify as the child of his father because the definition of child under the immigration law was "an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere . . . , if such legitimation . . . takes place before the child reaches the age of 16 years . . . , and the child is in the legal custody of the legitimating . . . parent or parents at the time of such legitimation." In so holding, the Judge relied on prior BIA caselaw finding that the only way to legitimate a child under Jamaican law was for the child's parents to marry (which Mr. Cross' parents had not done).

Recognizing the tension between these interpretations, the BIA determined that a person born abroad to unmarried parents can be a “child” for purposes of section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States). Thus, Mr. Cross was indeed a citizen, and the BIA terminated the removal proceedings against him.

The full text of Matter of Cross can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3826.pdf